1 Feb 2007, 09:00

A woman ("the informant") provided information to the Child Youth & Family Service ("CYFS") about an abusive family situation involving a child. She gave the information on the strict understanding that her identity would remain confidential. The informant was concerned for her safety and that of the child.

As a result of the woman's information, CYFS carried out a full investigation. The investigation resulted in the child being removed from the family.

A member of the child's family ("the requester") asked for access to information about themselves and about the child under the Privacy Act and the Official Information Act respectively.

CYFS released some information to the requester, and withheld other information. In particular, CYFS withheld information identifying the informant, and information which it believed might identify the informant.

Despite this, the requester became aware of the informant's identity. The informant suffered harassment and embarrassment as a result of her identity becoming known.

The informant complained to us that CYFS had disclosed information and had breached her privacy.

Principle 11

The complaint raised issues under principle 11. Principle 11 states that an agency that holds personal information must not disclose the information unless it believes, on reasonable grounds, that one of the exceptions to principle 11 applies.

There may have been other ways in which the requester became aware of the informant's identity. However, it appeared possible that the requester learned of the informant's identity through the material that CYFS had released.

The CYFS social worker who processed the request advised that he was confident that he made sufficient deletions to protect the informant's identity. The social worker noted that, in order to protect the identity of an informant who had requested confidentiality, it is often important to withhold not only the informant's details but also other information that may indirectly identify them. This is because other information within the file may also contain references to the informant. He stated that he was always conscious of this when processing requests for information.

CYFS commented that sometimes there is a fine line between protecting the privacy of the informant and the requester's right to know what they have been accused of. CYFS noted that because of the potential for this to occur it does not guarantee complete confidentiality for informants, though it tries to protect them as much as possible.

Is CYFS liable for the disclosure of information?

Assuming that CYFS did disclose the information, section 115 of the Privacy Act states that if personal information is made available under principle 6 to a requester in good faith then no proceedings (criminal or civil) will lie against the agency which has processed the request.

Section 48 of the Official Information Act is a very similar provision, providing protection for those who make official information available in good faith. While I do not have jurisdiction over the Official Information Act, it was highly likely that a similar conclusion would apply as regards the information released under that Act.

CYFS argued that section 115 provided protection for it in this case. To demonstrate that it was entitled to the protection of section 115, CYFS had to show that:

• it made the personal information about the informant available in response to a principle 6 request from someone else; and
• it released that information "in good faith".

If CYFS disclosed the informant's identity at all, this was as a result of complying with a request for access to information under principle 6 of the Privacy Act (or perhaps fulfilling its obligations under the Official Information Act). CYFS clearly considered that request under the Privacy Act, in the proper way. It withheld information that could have identified the informant. In doing so, it relied on the withholding grounds set out in the Act. The Act was therefore obviously at the forefront of the staff member's mind.

Moreover, CYFS appeared to have released the information in good faith. It was possible that a mistake was made at some point, resulting in the requester being given information that identified the informant. However, a mistake does not amount to "bad faith". In particular, there was no indication that CYFS failed to consider the informant's interests, or failed to take any care. The opposite appeared to be true. CYFS made specific and meaningful attempts to withhold all information about the informant's identity, while at the same time ensuring that the requester received a copy of the information to which they were entitled.

I was satisfied that CYFS had acted in good faith. Accordingly, section 115 applied, and CYFS was not liable under principle 11 for any disclosure of personal information about the informant that occurred as a result of giving information to the requester under principle 6. Therefore CYFS did not interfere with the informant's privacy.

The informant believed that there were wider systemic problems with CYFS' procedures for dealing with information requests. This, however, was not a matter that raised Privacy Act issues. Instead, it was a matter for the Ombudsmen to consider investigating under the Ombudsmen Act. I told the informant that she could approach the Ombudsmen to discuss this issue, and I closed my file.

September 2007

Disclosure - Child Youth & Family Service - access request - informant identity released - provided in good faith in response to access request - Privacy Act 1993, principle 11, section 115